By the time I sat down, I felt that I was the accused

Posted on March 15, 2018 by Cape Rebel

From A Life At Law
by Isie Maisels
by Sydney Kentridge QC

‘Reminiscences of advocates are sometimes no more than a dry account of long forgotten (and often justly forgotten) court cases. These memoirs of Isie Maisels are something completely different. First, many of Isie’s cases, especially during the long years of apartheid, were not merely cases between two litigants. They were cases about the sort of country we were then living in. The notorious Bethal farm labourer cases of the 1950s and the great treason trial which ran from 1956 to 1961 are only two examples. Secondly, Isie seemed to attract to his practice cases which, even without any political dimension, were of extraordinary interest, such as the De Melker case or the Bubbles Schroeder murder case. What is more, the stories of these cases are told in Isie’s individual voice. He was a great raconteur, and this talent is vividly present on the printed page.

‘This is not a book simply for lawyers. No reader, I think, can fail to find it fascinating and, indeed, compulsively readable. For a lawyer it is enthralling. Over the years South Africa has known great advocates, whose names survive in legal legend – Beauclerk Upington and Graeme Duncan of Cape Town, Graham Mackeurtan of Natal and Harry Morris of Johannesburg. Isie Maisels is among these greats and, I suspect, as an all-round advocate, the greatest of them all. I say ‘all-round’ because Isie was known to the public during his years of practice at the Bar primarily as a formidable cross-examiner. That he was, but he was much more. His forensic skills were based on sound knowledge of the law. If I have a favourite case in this book it is R v Manasawitz. I shall not give away the story, which Isie tells so well. The reader will find that it illustrates perfectly the combination of legal acumen and sheer forensic panache which made Isie the advocate he was. And he was not yet 30 years old when he argued that case.

‘Isie’s power as a cross-examiner does, however, deserve more than passing mention. It is not easy to describe, let alone analyse. In some uncanny way Isie would, from the outset, achieve domination over the unfortunate witness, which usually enabled him to extract exactly the answers he wanted. A prime example of this was his cross-examination of Professor Andrew Murray, the prosecution’s expert on communism in the treason trial. In that instance he used a weapon of cross-examination which young advocates are not advised to imitate, but which could be deadly in Isie’s hands – good natured humour at the expense of the discomfited witness. All in all, I have never seen Isie’s equal as a cross-examiner in any jurisdiction in which I have practised.

‘Isie was a lawyer, not a politician, but his fierce detestation of apartheid was unconcealed. Time and again he appeared in the courts to vindicate the rights of the individual against the oppression of the apartheid state. The reader may learn from Isie’s life in the law what it is that goes to make a truly great advocate – legal learning, eloquence combined with lucidity, wise judgment – but above all, courage. We are fortunate to have had him among us.’

R v Manasawitz

One day an old friend of mine, Reuben Kahanowitz, asked me whether I would be prepared to go to Bloemfontein to argue an application for leave to appeal, for a fee of 35 guineas. I was then 28, and as I had never been to the Appellate Division of the Supreme Court, I would have been prepared to go there for nothing; and a fee of 35 guineas was certainly good compensation in those days. He then told me what the appeal was about.

A man called Manasewitz, who practised as an attorney in Witbank, had been found guilty of fraud. In those days – the early 1930s – farmers could obtain loans from the Land Bank amounting to two thirds of the value of the cattle that they owned: for example, if the farmer had cattle valued at £1 500 he could get a loan of £1 000. Manasewitz and a local valuer thought of a way of getting greater loans for farmers, and at the same time enriching themselves. Instead of valuing the cattle at £1 500, they were to be valued at £3 000, enabling the farmer to get a loan of £2 000. The extra money so received would then be shared by Manasewitz, his co-conspirator, and the farmer. Fraud can only be said to be committed if there is prejudice, or potential prejudice, to the person defrauded. As the farmer in question probably never intended to repay the loan, whether it was £1 000 or £2 000, he was apparently a willing accomplice. However, the fraud was discovered, and Manasewitz was charged with fraud to the prejudice of the Department of Lands.

He was duly convicted, and he appealed to the Transvaal Provincial Division against his conviction. This appeal was heard by Judge NJ de Wet and Judge of Appeal Mr Justice Grindley Ferris. Judge De Wet had been a Minister of Justice and he was well aware of the workings of government. He took the view, with which his brother judge concurred, that it was not the Department of Lands that had suffered prejudice, but the Union government. The court, therefore, upheld the appeal and the conviction and sentence were set aside.

The Attorney General of the Transvaal decided to re-indict Manasewitz, now alleging that fraud had been committed to the prejudice of the Union government. Manasewitz appeared before the magistrate in Witbank, and his counsel took the point of autrefois acquit – arguing that Manasewitz had already been acquitted on this charge, and could not be charged again on the same charge. The magistrate rejected this defence and found Manasewitz guilty.

Again there was an appeal. This time the court consisted of two of the most eminent judges I have ever appeared before, Judges Tindall and Greenberg. That court apparently considered itself bound by the previous decision of Judges De Wet and Grindley Ferris, which had decided that if there had been fraud, it had been fraud on the Union government. Consequently the court dismissed the appeal.

For a junior such as I to think that Tindall and Greenberg could ever be wrong, was probably heresy. As if the fact that this was to be an application for leave to appeal against their judgment was not sufficiently daunting, to add to my dismay I was shown an opinion, written in his own handwriting by Advocate Philip Millin, in which he said that an application for leave to appeal was without merit, was bound to be dismissed, and that he was not prepared to argue it. However, I duly went to argue the appeal in Bloemfontein. The Chief Justice was Sir John Wessels, a great judge, but well known for the hostile treatment that he meted out to counsel when not in agreement with a point being argued.

As this case was to be my first appearance before the court, I decided to spend some time listening to another appeal being argued before mine was to be heard. The appeal court in Bloemfontein is one of the most beautiful courts I have ever seen. It is a large room, all panelled in stinkwood. The story is that the court was being built during the tenure of a previous Chief Justice, JA de Villiers, who, being an expert on timber, had insisted on this panelling. The members of the Bench were Chief Justice Wessels, Judges of Appeal Curlewis, Stratford, FW Beyers, and Sir Etienne de Villiers.

I confess that I cannot think of a single defended case, or appeal, or opposed application – and indeed some unopposed applications – where I was not nervous when starting to argue. In this case, my client was hardly one deserving of sympathy; and I was likely to get a rough hearing, particularly from Chief Justice Wessels. I began: ‘M’Lord, this is an application for leave to appeal.’ Wessels said loudly: ‘Leave, leave!’ and, turning to my opponent – WG Hoal KC, Attorney General of the Orange Free State, who was appearing for the Crown – said: ‘Oh, you don’t oppose leave, do you?’ Hoal wanted to, but the manner in which these words were delivered indicated to me, and I’m sure that Hoal felt the same way, that Wessels was going to dispose of this application in a summary manner.

I then commenced my argument. I had, as anticipated, a very rough time from Chief Justice Wessels, so much so that by the time I sat down, I felt that I was the accused. As I sat down, Judge Wessels said in a whisper to Judge Curlewis – heard by me, and probably audible at the back of the court – ‘You don’t want to hear Hoal do you?’ The significance of that question, of course, was that he, Wessels, had made up his mind to dismiss the application, and did not feel it necessary to hear the Crown’s argument in reply. Curlewis agreed with Wessels, as did Stratford and Beyers.

When Wessels looked at Sir Etienne to find out whether he agreed as well, Sir Etienne indicated that he did not agree. He then did a thing that I have never seen since – and I gather from my colleagues that neither have they seen it in their experience of an appeal court. Sir Etienne got up and walked right across the court to where the Chief Justice was sitting, and he and the Chief Justice had a discussion behind the chair. The Chief Justice’s chair is a very high one, and I did not hear what was said between them; but whatever was said, the result was that Hoal was called upon to argue. He had a smooth passage. I replied – I cannot remember what I said – but the court reserved judgment.

The result came as a surprise to me. All the members of the court, except Curlewis, who dissented, decided to give leave to appeal. The main judgment of those deciding to grant leave to appeal was that of De Villiers. He pointed out that, unlike the judges in the Transvaal Provincial Division (Tindall and Greenberg), the Appellate Division was not bound by the previous decision of Judges NJ de Wet and Grindley Ferris, which in his view was incorrect. The accused should have been found guilty on this charge, but having been found not guilty, was entitled to the benefit of the plea of autrefois acquit. He was in jeopardy of having been found guilty on the first trial and first appeal. De Villiers’s judgment – like all his judgments – was a model of clarity and logical reasoning.

The report of the case says that the appeal was then allowed. As I have already pointed out, there was not an appeal at that stage, but an application for leave to appeal. Chief Justice Wessels said that the court could not finally decide the matter until the full record of the proceedings in the courts below was before the Appellate Division. Sir Etienne did not think so; and correctly in my opinion, because the point was essentially one of law, and a sufficient portion of the record was before the court on the application.

The appeal itself was heard the following year, and the result was a foregone conclusion. It was a formality, and the appeal was duly upheld.